Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-06-10
COURT OF APPEALS.

Jonn L. white, presiding 1udgei j. NJ. Hur
and sam A. Wilson, judges; James l.. White
clerk; w: l.. Davidson, assistant attorney
general; NJ. NJ. Johnson. baillf.
Hugh Barron VS.. State, appeal from
Gillespie county; opinion by White, P. J
Appellant and his father were indicted
for the murder of one W. W. Walker
The father was acquitted and appellan
was convicted Of msnslaughter. It wa:
error TO allow the introduction of threat;
against deceased made by the father
while appellant was not present
Appellant requested g charge to the Jury
which was refused, because the court
said it was embodied in the general
charge. This we do not think
The charge requested was to the effect
that if the jury believed that appellant
and father had 8 reasonable apprehension
that their lives were in danger when de-
! leased ana his SONS were advancing IN q
threatening manner, although their inten-
ton was innocent, if defendants did not
know it, then the killing was justifable.
! Under the facts of the case this charge
was necessary to present the proper is
sue. Several other questions are pre-
! sented, but they are not necessary TO be
considered. For errors above pointed
| out the Judgment is reversed and the
cause remanded.
Dan Crate vs.. State, from Milan
county; opinion by White, 2. j. II the
evidence of the prosecutriX is cred
! IDLE, the appellant ravished her and the
sentence of five years is mild one, and
it was for the jury to decide whetheFsae
was credible or not. Newly dise5vsfed
evidence to impesch the state ~ wit
nesses Is not sufficient to causea new
trial to be granted. The Judgment is
affirmed. ~
John Donahoe VS. the State, from Mo-
Lehman county; opinion by White, 2. j.
Appellant was convicted of theft of q
half cord of wood. It is g humane pro-
vision that if q person labOring under
mistake of particular fact shall do ar
act otherwise criminal, he is guilty of no
offense. This case shows such mistake.
Another defect patent in the record is
that no venue is proven. 1t does not ap-
pear In what county or state the offense
was committed. Reversed and remanded.
NJ. d. Williams VS.. State, from Falls
county; opinion by White, 2. J. Appel
liant was convicted of selling whisky with
out a license under article 10, ?. G.. The
court erred in refusing to charge the Jury
in effect that the mere act of selling
liquor was not an offense, and unless the
Jury believed the appellant was pursuing
the occupation of selling liquor with
out obtaining 8 license he must be &C
quilted. Ii does not require
even 8 single sale to constitute the
Offense charged so person may make Oc-
casional sales without pursuing the occu
patton Of selling liquor. Again the evil
dence shows that while appellant had
whisky he always refused TO sell it, but
allowed parties to help themselves to
whisky in bottles on several occasions,
but the evidence fails to show that
whisky selling Wss gu occupation. For
these TWO errors the Judgment is reversed
and the cause remanded.
Booker Scott vs.. State, from Houston
county; opinion by Wilson, J. This was
a conviction of murder, based solely
upon circumstantial evidence, which IS
Of an unsatisfactory and incOnclusive
character. After g thorough ConSiderR-
tiCn Of the evidence we must say il does
not warrant the conviction. The court
erred in not granting new trial. The
judgment is reversed and cause re-
manded.
JEFF Cathey vs.. State, from Bell county;
opinion by Hurt, J. Appellant was con-
victed Of carrying pistol on or about
mis- person. The evidence shows that he
was on the road 10 Bolton and picked the
pistol up from the corner of mis- wagon.
1t is not made an offense by the statute TO
carry g pistol in wagon, and holding it
in his hand second or TWO does not con-
stitute the offense. The judgment is re-
Versed and the cause TemanGed.
Hattie Huffman VS.. State, from Bell
county; opinion by Hurt, j. This is 8
conviction for keeping disorderly
house from February l, 1856, to February
%, 1886. While q conviction bars all
further prosecution up to time of con-
victiOn, where the time is carved out as
in this indictment q conviction will be no
bar for keeping such house for time not
carved out, thus this Indictment elimi-
mates the plea of former conviction. 1t
was agreed between the parties to try
appellant on her bond with her sureties.
This was error, and the judgment is re-
versed as TO the sureties anu affirmed as
to appellant.
G. S. Fielder VS.. the State, appeal from
Travis county; opinion by Hurt, J. In
the consideration of this case there are
only two questions involved, Cd SIS to the
Introduction of the following testimony
"When you reached the place of shooting
did any one say who had done the shoot
ing?" eyes, some one in the crowd
pointed out DR.. Fielder, and said, there
is the man who did the shooting l had
just met DR.. Fielder walking leisurely
down the street" This testimony was
objected to as hearsay. Hesrsay testi-
mony is admissible to prove no fact
which in its nature is susceptible of proof
by witnesses testifying of their own
knowledge. The EXPLANATIONS of
bystanders ere inadmissible as a |
rule, especially when physical fact is to |
be proved, and in order to introduce the |
exclamation to charge the defendant |
with being silent when he heard it, the !
defendant must be shown to have hesrd |
it. Admitting that he heard it, another !
person being with him, was it sufficient
to call for response from him? There
is no evidence that appellant saw any one
point him out as the man who did the |
shooting. We are of the opinion that the
declarations were not admissible under
any circumstances. o. The state in
troduced the dying declarations OF
the deceased that appellant had CON-
mitted the homicide, but the court ruled
out declarations made soon after the
shooting, that he did not know VINO shot
him. While dying declarations are ed-
missible they must be jealousy guarded,